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JUDGMENT
OWUSU-ANSAH, JA:
This application, for
declaratory judgment or orders against the Respondents
herein, has been brought by the applicant herein who is
now aged 19 years per his next friend for himself and
also in his representative capacity.
The other parties
represented are as follows:
1. Adivila Mathew
(born on 02.08.80. Aged 21years)
2. Akologo Gideon
Atanga (born on 24/07/78. Aged 23years)
3. Akugre John (born
on 31/12/79. Aged 21 years)
4. Aseghebila Elvis
Depores (born 19/12/82. Aged 19 years)
5. Atagabe Kenneth
Anderson (born 13/07/82. Aged 19 years)
6. Atorah Bede
Akorige (born on 22/10/82. Aged 19 years)
7. Atiah Albor (born
on 01/10/80. Aged 20 years)
8. Atuguba Harold
Tivah (born on 19/06/80. Aged 21 years)
9. Awundre Jerome
Anongseam (born on 03/11/82. Aged 18 years)
10. Aye-Anine
Guggisberg (born on 15/08/80. Aged 21 years)
11. Ayibellow Isaac
Bakite (born on 20/09/82. Aged 18 years)
12. Ayidiga Eric (born
on 28/09/78. Aged 22 years)
The reliefs sought were
as follows:
(a) Declarations
(i) A declaration that
the decision of the Final Awards Committee of the
Respondents (The West African Examination Council)
communicated in a letter No. EC/SSS/RS/Vol. IV/173 dated
the 30th April 2001, to the Headmaster/ Rector of Notre
Dame Seminary/Secondary School, Navrongo, cancelling the
entire results of the applicant together with those of
the twelve (12) students, named (supra) of Notre Dame
Secondary School, in the SSSCE for the year 2000 is
unlawful, null, void and of no effect.
(ii) A further
declaration that the barring of the applicant together
with the twelve (12) other students by the Respondents
for three (3) years from taking any examination
conducted by the Respondents is unlawful, null, void and
of no effect.
(iii) The refusal or
neglect of the Respondents to release the entire results
of the applicant together with that of the twelve (12)
other students in the SSSCE 2000 is unlawful, null, void
and of no effect.
(b) Such directions or
orders as this Honourable Court may consider necessary
and appropriate to remedy the infringement or violation
of the fundamental human rights and freedoms of the
applicant and the twelve (12) other students.
The Applicant came to
Court by way of Originating Motion on Notice Supported
by Affidavit. The substance of the application was that
the applicant and the 12 others were registered for, and
sat, the Senior Secondary School Certificate
Examinations for the year 2000 which were organized and
conducted by the Respondents.
The applicant insisted
that they never had any foreknowledge of any of the
question papers set, either before or during the
examination, and also that they never acted in collusion
with any one in the said examinations.
Another point raised by
the applicant is that none of the affected students was
ever questioned, cautioned, reprimanded, or interrogated
by any agents of the Respondents either before, during
or after writing the said examinations in respect of any
of them having had foreknowledge of the examination
question, or as having acted in collusion with any
person(s), in writing the said examination. A gross
violation of the principles of natural justice was also
alleged.
In brief the case for
the Respondents/Appellants is that the
Respondents/Appellants as an international Examining
Body set up by convention and law to conduct examination
in the English Speaking West African sub-Region has
evolved Rules and Regulations to ensure the sanctity of
the examinations, and also to ensure fairness to
candidates. The enforcement of the said Regulations is
to stem out examination malpractice in the public
interest.
The applicants relied
heavily on Exhibit C which states as follows:
“During the conduct of
the 2000 SSSCE there were allegations of foreknowledge
of some of the question papers. The only means by which
the Appellant Council could verify the allegations was
the scrutinizing of the scripts of the candidates. As a
result all scripts of all subjects were scrutinized.
From the scrutiny it was established that there was
foreknowledge and collusion among the 13 candidates (out
of 76) from Notre Dome Secondary School-Navrongo in
Mathematics (core) paper 2. The Council therefore,
applied the prescribed sanctions”.
The learned trial judge
carefully scrutinized the evidence and made some
important and relevant findings of fact which formed the
basis of his decision relying on a number of statutory
provisions particularly Articles 19, 23, 24 and 33(1) of
the 1992 constitution of the Republic of Ghana as well
as some statutory and case law including PNDCL 225, and
the leading cases of L’ Air Liquide (Ghana) Ltd vs.
Anning and others 1991 1 GLR 460 at 463, on the issue of
natural justice; C.B. Kelly’s dictum in Wood v Wood 1
Stra 557 on the principle of audi alteram partem, was
cited. Reference was also made to Ridge vs Baldwin 1964
AC 40 at 132 on the features of natural justice. Also
cited was R v. University of Cambridge 1723 1 st 537
wherein a judicial dictum is recorded that “Even God
himself did not pass sanction on Adam before he was
called upon to make his defence. “Adam” says God, “
where art thou” Has thou not eaten of the tree whereof I
commanded that thou shalt not eat?” And the same
question was put to Eve also.
The learned trial judge
found in favour of the applicant and made some
consequential orders, namely,
1. “The Respondents are
hereby ordered to publish the results of the applicants
in all the papers they wrote in the 2000 SSSCE and
communicate same to the Headmaster of the applicant's
school forthwith.
2. “The ban imposed on
the applicants from writing any examinations for the
council for the next three (3) years is hereby lifted”.
It is against this
decision of the Fast Track High Court that the applicant
has appealed to this Court. The grounds of appeal
include:
1. His Lordship failed
to note that the Rules and Regulations that govern the
examinations constitute a contract between the
candidates and the Respondents/Applicant and that
candidates accept these conditions before writing the
examination.
2. In summarizing, His
Lordship omitted to note that the Respondent/Appellant
herein had pleaded in paragraph 11 of the Affidavit in
Opposition and had also argued that the practice of
Examining Bodies evolving their Rules is universal. If
His Lordship had applied the principle he would have
held that the decision to cancel the result was fair”.
3. In summarizing the
Respondent/Appellant’s defence, His Lordship omitted to
note that the Respondent had pleaded public interest
under Article 12 of the 1992 Republican Constitution of
Ghana.
4. Other grounds of
Appeal will be filed upon receipt of copy of the record
of proceedings.
However, the
Respondent/Appellant’s Counsel appeared to have
abandoned all the above grounds of appeal, and rather
sought to argue the additional ground which states: “The
learned Judge erred in not setting aside the originating
Motion on Notice as not warranted by any rule of law or
procedure”. I shall therefore confine myself to this
ground of appeal only, if it is enough to dispose of the
matter.
Counsel for the
appellant pointed out that the original Motion was filed
on the 10th August 2001 without a return date, but on
the 19th September 2001, the applicants filed another
application when arguments had closed for those
declarations, but on the 1st October 2001 when the
applicants would move the court for “mandatory
Injunction compelling the registration of the applicant
and 12 other Respondents of Notre Dame Secondary School,
Navrongo, in respect of the Senior Secondary School
Certificate Examinations, upon grounds which were set
out in the accompanying Affidavit.”
The appellants
contended therefore that the entire proceeding was
faulted in procedure. In the result, says the
Appellants, the jurisdiction of the Court was never
properly invoked.
The appellant contended
further that since by the provisions of Order 2 R1 of
the High Court (Civil Procedure) Rules 1954 LN 140A”.
Every action shall be commenced by a Writ, “ the
proceeding in this case by originating Motion on Notice
for the declaration sought must be struck out unless
the applicants can point to a rule that specifically
permits such procedure.”
On behalf of the
Respondents it was submitted that the appellant’s
contention was erroneous in law and misconceived and
that the procedure adopted was proper and unimpeachable.
It was an application, submits Counsel, for the
enforcement of constitutionally guaranteed fundamental
human rights under Article 33(1) of the 1992
Constitution.
“33(1) provides that:
“Where a person alleges that a provision of this
constitution on fundamental human rights and freedoms
has been, is being, or is likely to be contravened in
relation to him then, without prejudice to any action
that is lawfully available, that person may apply to the
High Court for redress”.
That provision, in my
opinion, postulates that, in this case the fundamental
human right under the constitution of the 1992 has been
contravened in relation to the aggrieved party; this
must be a condition precedent to the invocation of Art
33(1).
What constitutes
“Fundamental Human Rights and Freedoms” has been clearly
and unequivocally spelt out in Articles 12-33 Chapter
Five (Pages 12-34) of the Constitution of the Republic
of Ghana, 1992. It includes such rights as Protection of
Right to life, Protection of Right to Personal Liberty,
Respect for Human Dignity, Protection from slavery and
forced labour; Equality and Freedom from Discrimination;
Protection of Privacy of Home and other property; fair
trial of criminal offences; Protection from deprivation
of property; Property rights of spouses; Economic
Rights; Children’s Rights; Right of the Disabled and the
sick etc.
It is not very clear
which “fundamental human right” under the constitution
has been breached or contravened so as to justify the
invocation of Article 33(1) quoted verbatim above-by
means of an Originating Motion on Notice or Originating
summons.
Order 54A for instance
provides: that “Any person claiming to be interested
under a deed, a will or other written instrument may
apply by Originating Summons for the determination of
any question of construction arising under the
instrument and for a declaration of the rights of the
persons interest”.
Rule 2 of Order 54A
also states:
“Any person claiming
legal or equitable right in a case where the
determination of the question whether he is entitled to
the right depends upon a question of construction of a
statute, may apply by originating summons for the
determination of such question of construction and for a
declaration as to the right claimed”.
In my view the
procedure adopted in this case, that is Originating
Motion on Notice, is inappropriate and flawed, since, as
has already been pointed out, the Respondents were
seeking a number of Declarations, including but not
limited to a declaration that: -
- the cancellation
of the Results was unlawful;
- the barring of
the applicants was void and of no effect.
- the council’s
refusal to release the results was unlawful.
Indeed there is
abundant evidence on record that the Court below was
mindful of, and actually adverted its mind to, this
irregularity and pointed it out, but allowed itself to
be swayed from that straight course into a path of
tortuosity strewn with debris.
It is my considered
view that the jurisdiction of the High Court could and
should have been more appropriately invoked.
In L’Air Liquide v.
Anning 1991 1 GLR page 460 at 463, it was clearly
decided that when people are given power by law to
consider facts and to arrive at conclusions that affect
the fate of human beings they are performing a
quasi-judicial function.
At page 5 of the
Respondent’s written submission, he catalogues a list of
statutory provisions allegedly contravened by the
appellant Council, in many cases without any indication
as to how. However, these alleged rights can only be
asserted by means of the proper procedures in order to
invoke the jurisdiction of the Court.
Thus at a very early
stage of the hearing the learned judge had this to say:
“ I am not very sure whether having regard to the
reliefs you have prayed for an originating Summons is
the best way to reach the reliefs … You have only an
Affidavit and I would not mind if you would possibly
take a day or two to reconsider that aspect because as
soon as the gate is shut on you that is your end. We
shall not re-open. You will not get another chance to
re-open to put in material which you would otherwise
have wanted to put in.” Elsewhere the learned judge went
on “…if instead of coming by originating summons you
come by a writ and then you say that the Defendant has
breached your rights, then evidence will be led. The
advantage there is that those who actually handled the
scripts can “ come and testify and you have the chance
of cross-examining them”.
Nevertheless, Counsel
for the Applicant/Respondent insisted: “we have
considered the possibility of going by writ as was
suggested (by the judge) but we have realized that by
the time we go through the processes of a writ and
evidence the ban on the applicants might have been
served in which case the judgment would not be of any
practical significance”.
Yet another Counsel for
the Applicants argued that “ we have painfully come to
the conclusion that we would move the motion as it
stands, in spite of all the limitations the procedure we
are adopting places on us. My Lord that is the
conclusion we have come to”.
The Rules of Court are
meant to be obeyed to guide litigants and cannot be
sacrificed on the altar of convenience. In my view,
unless the jurisdiction of the court is properly invoked
in accordance with the relevant Rules any argument,
however meritorious, cannot be entertained.
And further it has been
held that whether a trial judge is justified to dispose
of the matter summarily is a question of law, not of
fact see Kwaggane v. Adjei 1992 1 GLR 189 CA.
Again it is a well
established rule of law that where facts are not capable
of being determined on affidavit (Garcia v. Torrejoh
1992 1 GLR 143 refers,) then and in that event it will
be necessary to take evidence.
The Court cannot
condone the perpetuation of such a glaring error as
occurred in this case.
Although the evidence
predominantly favoured the Respondent, the issue of
jurisdiction has to be settled first.
The jurisdiction of the
Court is the power to hear and determine the subject
matter in controversy between the parties to the suit,
the power or authority to adjudicate.
Where it is lacking as
in the case of Kumipah v. Ayirebi 1987 1 GLR 625, any
judgment or order emanating from the Court or judge is a
nullity and the person adversely affected by it is
entitled to ignore it. Jurisdiction can be properly
invoked under order 2 rule 1 of the High Court (Civil
Procedure) Rules (LN 140A) a subordinate legislation,
which provides that “ Every action in the High Court
shall be commenced by a Writ of Summons” subject of
course to a few exception, such as a Petition in a
divorce case under order 55 Rule 3(1), or in an
appropriate case, a Summons, an Originating motion or
Originating Summons.
I find myself
regretfully unable to gloss over this fundamental
procedural error or irregularity; not even order 70 can
save it as it is obviously incurably bad. The rules are
the only means by which substantive rights can be
enforced or defended. There can be no room for short
cuts to litigation.
The Respondent appears
to have placed a high premium on the provision of
Article 33(1) of the constitution and submits:
“Our application was
not an ordinary application before the High Court. It
was an application for the enforcement of “ a
constitutionally guaranteed fundamental human rights
under Article 33(1) of the 1992 constitution” and
proceeds to quote the article.
It will be presumptuous
of this court, indeed wrong, to attempt to interprete
any provision of the constitution, or in any other way
try to encroach upon, or usurp, powers that properly
belong to the Supreme Court.
Be that as it may, it
is perfectly obvious that the Respondent refers to this
article in an effort to buttress his submission on the
question of the relevant procedure. That presupposes
some kind of interference with the Respondent’s
constitutionally guaranteed fundamental human rights so
as to give rise to the procedure under Art 33. What that
is, I must confess I cannot fathom.
In Heward-Mills v.
Heward-Mills 1992-93 GLR 239 at 246 the Court made an
interesting observation vis a vis the issue of
jurisdiction. The court said:
“Where a statutory
condition must be complied with before a Court can have
jurisdiction to make an order, failure to comply with
such a condition will leave the Court with no discretion
to make any order or orders in the matter “.
It is true that no
rules had been made by the Rules of Court Committee in
pursuance of Article 28 (4) of the constitution. That,
however, is immaterial until it has been clearly and
amply demonstrated that a constitutionally guaranteed
fundamental human right has been breached or contravened
giving rise to the invocation of Article 33(1). In such
an eventuality, no one can legitimately quarrel with
such an application being made by an originating Motion
on Notice. Thus in my respectful view the decision in
Peoples Popular Party v. Attorney General 1971 1 GLR 138
cited with approval in subsequent cases is hardly
applicable to the instant case.
Similarly the principle
enunciated by the Privy Council in Juandoo v. A-G of
Guyana 1971 3 WLR 13 at 114 is inapplicable to this case
for obvious reasons.
A careful perusal of
the available affidavit evidence, the facts of the case,
and all the surrounding circumstances would seem to
confirm the need to take some evidence to resolve the
crucial, pertinent issues of fact in order to do
substantial justice.
For example, it was
being alleged by the WAEC, the appellants herein, that
the candidates concerned had foreknowledge of the
Mathematics (core2) examination paper. This was
emphatically denied by the Respondents.
Collusion was another
allegation which was vehemently denied. The issue could
only be resolved by taking evidence and testing the
veracity through cross-examination.
There were further
allegations of breaches of Article 19 of the
Constitution of 1992. That Article, covering some four
pages, deals almost exclusively with criminal
proceedings. Needless to say the Respondent in this case
was neither charged with nor convicted of any criminal
offence(s).
The Respondents also
alleged a breach of Article 23 of the Constitution which
deals with Administrative justice. It states:
“Administrative bodies and administrative officers shall
act fairly and reasonably and comply with the
requirements imposed on them by law, and persons
aggrieved by the exercise of such acts and decisions
shall have the right to seek redress before a Court or
other tribunal.”
It seems to me that the
Council were exercising an administrative function
rather than a judicial function when it came to a
conclusion and decided to impose the penalties
complained of. Under S3 (3) of PNDCL 255 “ the penalties
contained in this section shall be in addition to any
other penalties that may be imposed by a court or a
Tribunal”. That is if the Appellant, in its wisdom, had
decided to prosecute the Respondents. It goes without
saying that whether the Council had “ acted fairly and
reasonably and complied with the law” under Article 23
of the Constitution must be issues of fact to be
established by evidence. Hence the Procedure adopted by
the Respondents is inapplicable in asserting a right
under Article 23. West African Examination Council law,
PNDCL 255 is, by virtue of the provisions of the 1992
Constitution, part of the laws of Ghana.
Section 10 of that law
provides:
“10 where in any
investigation or trial a candidate is found to have had
access to an examination paper or to have had
foreknowledge of the contents of an examination paper or
cheated in any way during an examination, a Report shall
be made to the Council which shall take such action,
including the cancellation of examination results and
any certificate issued in respect thereof to the
candidate.”
This Section 10 does
not necessarily imply or even envisage a Court action or
proceedings. The Council had been invested with power
to investigate and take action. No legal enquiry was
contemplated.
It is common knowledge
that the Council in the fullness of its wisdom and in
order to preserve its integrity and reputation cancelled
the entire results.
I hold that the action
taken by the Council was neither ultra vines nor
arbitrary but in accordance with the provisions of PNDCL
255.
In any event, as
already indicated the procedure adopted by the
applicants/Respondents in invoking the jurisdiction of
the Court cannot be sanctioned by this Court, thereby
perpetuating the undesirable practice.
In paragraph 4 of the
Appellant’s Affidavit in Opposition, the Appellant’s
Counsel insisted that “the Council is an Examining Body
established by Law, Convention and PNDC Law 255 to
conduct examination in the English Speaking West Africa
and further that in the exercise of the powers conferred
on it, the council has evolved Rules and Regulations to
ensure the sanctity of examinations and also to ensure
fairness to all candidates.
This responsibility
enjoins the Appellant/Council to stem out examination
malpractices for the public good (or probono).
The Appellant had made
allegations of foreknowledge and collusion (Paragraph
8), the procedure adopted by the applicant did not give
room for evidence which is very vital in this case.
In the result, I hold
that, in all the circumstances, the appeal ought to
succeed, and is accordingly allowed.
The consequential
orders of the Court below are hereby set aside.
In relation to the
penalty of three years ban imposed on the Respondent, by
the Appellant/Council, I think one has to balance the
interest of the public as against the interests of the
young Respondents and their future.
In my view the ban
imposed on the applicants from writing any examinations
for the Council for the next 3 years is rather harsh in
all the circumstances.
I would substitute the
minimum period of 2 years as provided by Act 255.
There shall be no order
as to costs.
P.K. OWUSU-ANSAH
JUSTICE OF APPEAL
ESSILFIE-BONDZIE:
I agree.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
ARYEETEY, JA:
I also agree.
B.T. ARYEETEY
JUSTICE OF APPEAL
COUNSEL:
VDM |
